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SPECIALISATION COURSE ON RULE OF LAW

COURSE CONCEPT

Developed through the

EC PROJECT ON TRAINING FOR CIVILIAN ASPECTS OF CRISIS MANAGEMENT

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Specialisation Course on Rule of Law Course Concept

Table of Contents

I. INTRODUCTION 3

II. OVERALL OBJECTIVES 3

III. GENERAL BACKGROUND 4

IV. MODULES AND SUBJECT AREAS 4

1. Rule of Law - International Law and Institut ions 4

2. Rule of Law - Applicable Law and Local Insti tutions 5Subject 1: Rule of law and law enforcement 5Subject 2: Investigation of criminal offences 5

Subject 3: Corruption 5

Subject 4: Court proceedings 6Subject 5: Prosecuting war crimes 6Subject 6: Judicial review 6Subject 7: Rights of victims in criminal proceedings 6Subject 8: Prison administration 6Subject 9: The civil procedure 6Subject 10: Property rights 7Subject 11: Governance and the administrative procedure: 7

3. Monitoring and the Rule of Law 7

4. Fact Finding and the Rule of Law 8

5. Executive Functions and the Rule of Law 8

6. Capacity Bui lding Assis tance 9

7. Advising, Teaching and Training Techniques 9

Last Updated 9 December 2008 2


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I. INTRODUCTION

Following the targets set at the Gteborg European Council, the Spanish Presidency on 24January 2002 launched a call for contributions concerning staff resources in the field of Rule ofLaw. The Presidencys call for contributions contemplates basically two types of missions:- Legal, judicial and penal experts could be tasked with strengthening local institutions through

advice, training or monitoring.- Legal, judicial and penal experts could be... mandated to perform executive functions through

the temporary assignment of international staff, notably when local institutions are absent.

When designing the proper training of rule of law-officers for a particular mission, a key parameterwill naturally be the type of mission at hand: a monitoring mission, a fact-finding mission, a role inan executive mission or a post-conflict technical assistance type of mission. The skills required willbe different, while the required general knowledge basis can very well be similar.

As to the categories of staff involved in the missions, the calls for contributions indicate that theywill mainly be drawn from the legal system, judges/magistrates and prosecutors. Officials from theadministration services and the penitentiary systems are also foreseen. These categories ofofficials should not, however, be seen as exhaustive; other categories, notably lawyers,responsible for different functions in this broader understanding of rule of law are relevant, whenpreparing for mission training. Police personnel naturally form part of the professional categoriesrequired to establish, maintain or strengthen the rule of law; they are normally the first line ofdefence for the rule of law in any state governed by that principle. As the commitments under theESDP for police capacity have already been made, they do not, however, form part of the currentcall for contributions for rule of law-staff.

To establish a practical working structure for training modules, the core functions of the missionswill be seen as closely associated with the legal system, e.g. enhancing the administration ofjustice, i.e. by training of judges, prosecutors and lawyers, as well as correctional officers. (Trainingmodules for police missions have been elaborated and are currently on the curriculum of theEuropean Police Academy, containing rule of law-aspects. Conversely, police-aspects of rule oflaw-missions will be covered by this proposal, as it is a fundamental ingredient in any suchmission.) It involves monitoring the functioning of the legal system and encouraging improvementsin the administration of justice by suggesting systematic changes to the legal and judicial systemsin the mission area as necessary and appropriate, and by undertaking legal reform and legislativereview projects in order to bring domestic laws into line with recognised international standards.

II. OVERALL OBJECTIVES

The overall objective of the rule of law-training is to enhance the competence of and provideparticipants - heading towards duties involving executive, monitoring, advisory and trainingfunctions - with specific knowledge of the different mechanisms involved in a rule of law-mission orthe rule of law-duties that a mission of more general description can include, and the skillsnecessary to be able to perform in an international and crisis-stricken environment on the basis ofthat knowledge, in a manner that is efficient, correct and in compliance with the principles of rule oflaw.

The purpose of this Training Course for Experts in the Field of Rule of Law is to provide trainers

with standard modules, which can be used as a resource to provide relevant training to those whowill be part of such missions. Using modules that, where possible, draw upon the experiences



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already gained e.g. by the OSCE and the United Nations, will assist in the creation of a commonapproach to training for rule of law-missions (in other organisations often equivalent to monitoring-missions) and, thus facilitating co-operation among different international organisations in the field.

III. GENERAL BACKGROUND

An underlying concept is the understanding that for any effort in the field of rule of law to besuccessful, a holistic approach is the only tenable way forward - unless all links in the legal chain(from police, via prosecutors to courts and administration, to correctional facilities and victimprotection) are strengthened, preferably simultaneously, the rule of law will be absent in parts ofthe society and the chain remains broken.

Although international missions in civil crisis contexts for the sole purpose of strengthening the ruleof law are rare, there is an abundance of relevant knowledge and experiences accumulated in theUnited Nations, the OSCE and the Council of Europe, as a result of these organisationsinvolvement in missions for human rights. (The publication Basic Materials for the Training of

Human Rights Monitorsof the UNHCHR contains several modules, elements of which are directlytransposable to the training intended here.) There are also important national experiences inpreparing international experts in relevant disciplines. These experiences should, mutatismutandis, be put to use in EU training efforts, especially when it comes to elaborating trainingmaterial, since a lot of relevant work has been done.

IV. MODULES AND SUBJECT AREAS

1. Rule of Law - International Law and Institu tions

Context:

As reflected in Article 6 (1) of the Treaty on the European Union, rule of law must be seen in thecontext of respect for human rights and democracy. The rule of law subsequently covers a widerfield than just criminal procedure: it shall ensure that government and other public officials actunder the law, in accordance with the law and within the limits set by law, not only in criminalcases, but in civil cases as well as in the daily decision-making in the administration. Through theCopenhagen criteria and the international standards to which they refer, there is a body ofinstruments that together form the basis for the observance of rule of law. Through this module,participants will become informed about this body of instruments, how it may be integrated in amandate for rule of law-mission and how this may translate into the actual field mission.

Learning objectives:

- to have a greater awareness of the international institutional framework for the protection ofhuman rights and rule of law (who does what) and about international organisations active inthe field

- observance of internationally recognised standards vs. applicable local law- methods of integrating international standards, including the human dimension, in local law- differences in approach between lawyers from Common law and Civil law jurisdictions- understanding of the roles of partners in crisis management missions, and other relevant

missions such as the UNHCR, OSCE field missions, Council of Europe delegations and

missions of the European Union



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- awareness of the roles of some of the non-governmental organisations that they may meet andco-operate with in the field and how they work

2. Rule of Law - Appl icable Law and Local Institutions

Context:

In this module the international standards are brought from macro to micro level, demonstratingtheir direct relevance for a judicial and societal system (country-based examples will be used).Through this module, participants will gain practical knowledge of how local law and institutionshave been seen to meet or fall short of the standards set.


The training in the subject areas presented here will be based upon a problem-oriented approach,

involving the recipients of the training to high degree, in order to ensure that they themselves mayadvice or train others in turn. The methods of instruction will cover presentations, seminar-typeproblem solving in larger groups, as well as individual and small-group problem solving. Realisticexercises (moot court proceedings etc.) will be used to demonstrate problems and makeparticipants used to acting in such circumstances.

Subject 1: Rule of law and law enforcement


- familiarity with the special characteristics, purposes and objectives of international policeactivities: preventing and detecting crime, maintaining public order, rendering humanitarianassistance, and promoting and protecting fundamental rights and the rule of law

- awareness of the need for law enforcement agencies to be accountable to the local community,in order to be seen as part of the public services, i.e. through the establishment of mechanismsfor internal discipline, external control and effective management

Subject 2: Investigation of criminal offences


- familiarity with local and international rules on limitations of individual rights pursuant the

investigation of criminal offences, arrest and detention, detention awaiting trial, examination ofaccused persons, body interventions, access and search in closed precincts, interception ofcommunications

Subject 3: Corruption


- knowledge of international efforts to curb corruption as well as of examples where anti-

corruption measures have been built into actions of crisis management, reconstruction anddevelopment



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Subject 4: Court proceedings


- familiarity with local and international rules on public trials, evidence proceedings, evaluation ofevidence, criminal sentences, quality and efficiency in court proceedings

Subject 5: Prosecuting war crimes


- awareness of systems for prosecuting war crimes, with particular focus on current tribunals andhow their jurisdiction and competence operates in practice alongside local legal systems

Subject 6: Judicial review


- familiarity with the process of review of sentences, review of other court decisions, andcompensation for miscarriage of justice

Subject 7: Rights of victims in criminal proceedings


- familiarity with the local and international rights of the victim

Subject 8: Prison administ ration


- knowledge of the applicable international standards of imprisonment, alternative forms ofpenalties and mechanisms of rehabilitation and social reintegration

Subject 9: The civil procedure


- awareness of the local and international requirements on the civil procedure as well as of themore limited reach of international standards in civil law



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Subject 10: Property rights


- preparedness to address requirements for safeguarding property rights, as a means ofensuring the rule of law

- the central role of land registers, company, patent and copyright registers

Subject 11: Governance and the administrative procedure:


- knowledge of the different types of decision-making, registration and other administrative actsthat may carry rights or obligations, and how the rule of law should apply here as well

3. Monitoring and the Rule of Law

Context:

Monitoring the situation in a country or territory on the observance, absence or deterioration of therule of law, is an important tool in the political arsenal during the phases preceding an executivephase. The techniques of monitoring, acquiring information and reporting in such a way as to makethe information operationally useful are the main elements that participants will gain from thismodule. The training will stress the need for effective monitoring to be active, not a passiverecording-method. Proactive monitoring should subsequently be carried out in combination with

advising, cf. Module 7.


- awareness of monitoring the judiciary and the administration from the view of administration ofjustice, as well as of the applicable local and international standards governing trials

- practical knowledge on how to monitor court proceedings and decision-making in theadministration, and understanding the objectives and preparations for monitoring

- knowledge of the key concepts, principles and standards of monitoring, as well as of thepotential sources of information,

- methods for gathering, analysing and reporting of information

- awareness of the role monitoring plays in ensuring the application of standards by government

and public authorities- practical experience of the different means and types of reporting in a monitoring mission- ability to identify the societal institutions that play (or should play) a role in a state governed by

the rule of law; to discern technical and normative gaps and shortcomings in the governmentaland judicial systems, with regard to the rule of law

- knowledge of high-frequency difficulties leading to involuntary shortcoming in observing therule of law, such as insufficient court administration, case backlogs



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4. Fact Finding and the Rule of Law

Context:

Among the non-executive functions of rule of law-experts participating in EU civil crisis missions,fact finding-missions together with monitoring missions share several features with thecorresponding human rights-missions, and will probably be considered simultaneously in livesituations. Nevertheless, there is also a wide scope for employing experts exclusively for factfinding on rule of law. Fact finding-missions can function as a tool for establishing the information-basis for political decisions or for providing information needed to establish a field mission. In eithercase, the needs are different from those of an actual field mission. Through this module,participants will enhance the information gathering techniques dealt with under monitoring, into themore probing format of fact-finding, devoting some time to the local obstacles that may arise.


- achieving familiarity with the key concepts of information gathering, and the need for an activeinformation gathering approach to collect factual information about rule of law problems and forverifying and analysing the information gathered

- awareness of the need to act prudently when co-ordinating information gathering with theactivities of national and international tribunals, in order not to conflict with the work of suchbodies

- practical knowledge of collecting information by interviewing persons, the interviewing skillsneeded and how to work through an interpreter

- full awareness of the climate under which fact finding-missions normally take place (inparticular the local role of law enforcement officials and armed forces or groups) and the levelof co-operation that has been experienced in the past.

- ability to identify the societal institutions that play (or should play) a role in a state governed by



5. Executive Functions and the Rule of Law

Context:

During an executive mission or executive phase of a mission, rule of law-experts may be calledupon to take direct part notably in the administration of justice. Depending upon the mandate, thismay include functions all along the judicial chain, in support of an existing local system or througha system established through the executive mandate. The experts will be performing functions forwhich their national professional training and experience will have equipped them, but in a contextand under a legal regime that is radically different. Through this module, participants will, throughextensive exposure to the experiences of persons having served in such positions, get anunderstanding of the particular conditions that govern their functions and through a moot courtproceeding, they will be given relevant experience themselves.



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- knowledge of the varying mandates that may be applicable for the executive functions, andtheir links back to the general principles of rule of law

- experience of the conditions under which familiar functions may be performed during anexecutive rule of law-mission

- extensive knowledge about the difficulties that rule of law-experts in the past have encountered

during executive missions, and how these difficulties have been overcome- raised awareness of the actions required to address rule of law and human rights problems and

of encouraging corrective action by national and local authorities directly or through the use ofinternational mechanisms in place

- knowledge of factors that should be considered before undertaking arbitration, mediation orconciliation, as well as the basis on which these mechanisms should be pursued if so decided

6. Capacity Building Assistance

Context:

This phase of crisis management normally takes place well after the open conflict and theexecutive phase, and follows different rules governing the presence of rule of law-experts in thefield. Here, experts will find themselves in an advisory role, on the invitation of the host country orthe international regime governing it. Experts undergoing the training of this module will thereforebe prepared for a variety of advisory-type functions, ranging from advising officials to elaboratingproject proposals for local capacity-building.


- ability to identify the societal institutions that play (or should play) a role in a state governed by



- experience in elaborating strategies with concrete proposals for measures to be taken - locally,with or without the direct participation of international experts - in order to strengthen existingsocietal functions or to establish such functions, where they do not exist; measures to includeadvise, training, assistance in institution building and drafting of legislation and procedures

- knowledge of the administrative routines involved in project-based advisory functions (e.g.launching a training programme for local officials)

7. Advising, Teaching and Training Techniques

Context:

Just as is the case with monitoring, advice is likely to be part of any mandate in a post-conflictscenario and preparations for this type of missions is important. This module focuses on a specificfeature in what is normally capacity building, but which requires skills and methodologies that arerather different than those featured in modules 1 6. The pedagogic and communications skills areof overriding importance for these types of functions, and will presumably influence the selection ofexperts to be sent. This module should be seen as a supplement to a well-tailored package of

other modules, and not necessarily as standard module in a generic rule of law-course. Expertsundergoing this training will therefore be prepared for inter-active advising-, teaching- and training-



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functions, intended to target expert-to-singular local official, expert-to-cadre of local officials,expert-to-local trainers as well as expert-to-institution situations of instruction.


- ability to identify the practical needs for enhanced competence in an institution/group of

officials, on the basis of a request for assistance; translating a specified need with concretemeasures of advice or training

- ability to identify the needs for reform and restructuring of local structures, police forces, courtadministration etc.

- knowledge of specific communicational characteristics of the institutions and officials inquestion; political, cultural and gender perspectives

- experience in establishing a curriculum for a specific advising/training measure, focusing on thesubstantive elements of rule of law-knowledge necessary in the particular mission

- capacity to transfer training skills, alongside with the substantive knowledge, and to conductpractical exercises with the future local trainers

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